By: O. Reginald Osenton, Esquire

To most people the probate process is a mystery. If you ask someone what probate is, he or she will probably tell you probate is something to be done when you die, but he or she doesn't really know what it is. This article will discuss the probate process in Florida in general terms, covering the major steps of the process. You should keep in mind that each probate case is different, so the matters discussed might not apply in a given case.

In very general terms, probate is the process used to collect the assets of a decedent, to pay the decedent’s debts, and to distribute the assets to the decedent’s heirs. In Florida, that process is governed by the circuit courts, and, in most counties, one judge is appointed to handle all probate matters to provide expertise in this area of the law.

The probate process typically takes six to twelve months, although in some cases that time frame is shortened slightly or lengthened greatly. The help of a competent probate attorney is important (but not necessarily required), and actually can save you time and money. In addition, a competent attorney can help you minimize or avoid it altogether, with proper planning.

Typically, probate is begun shortly after the decedent’s death by the filing of the decedent’s last will with the clerk of the circuit court in the county where the decedent resided at the time of his or her death. In some cases, the estate also is probated in other counties where the decedent owned real estate. In most cases the personal representative (the "PR") nominated in the will files the will along with other documents needed for the probate court to appoint a PR. In cases where there is no will, the court will determine who should serve as PR and the identity of the heirs based on state law. If the initial documents filed are in proper form, the court will issue letters of administration, which is a court order the PR may use as proof that he or she is empowered to act on behalf of the estate.

Once qualified, the PR then begins the process of gathering the assets of the estate. The PR is responsible for collecting and managing probate assets, which are those assets which pass to heirs under the terms of the decedent’s will or by the law of interstate succession if there is no will. Probate assets must go through the probate process while non-probate assets do not. Non-probate assets are assets which pass to others by means other than a will or interstate succession. Examples of non-probate assets include jointly titled assets which pass to the surviving owner, beneficiaries of individual retirement accounts, and beneficiaries of trusts holding title to the decedent’s assets before death. Non-probate assets pass directly to the beneficiary at the decedent’s death, are not held up in the probate process, and are not subject to pay the decedent’s debts.

After gathering the assets, the PR notifies creditors by mail and by publication of

the deadline to file claims against the estate to pay the decedent’s debts. If claims are not timely filed, they are barred. Once a claim is filed, the PR has thirty days after the claim is filed or four months after the notice is published, whichever is later, to object to the claim. If no timely objection is filed, the PR must pay the claim using estate funds. If the PR objects to the claim, the creditor has thirty days to file suit to have the court decide the validity of the claim. If suit is not timely filed, the claim is barred.

Under current tax law, an estate will not pay estate taxes unless the value of the decedent’s assets is greater than $2,000,000.00. However, even if no estate tax is due, the PR must file the decedent’s final income tax return, covering from January 1st of the year the decedent died to the decedent’s date of death. Also, the decedent must file an income tax return for the estate (form 1041) in any year the estate has income exceeding $600. Those returns must be filed before the estate is closed.

The end of the probate process is a busy time for the PR. After all creditor claims are paid or otherwise resolved, the PR must distribute the remaining assets to the heirs. To do so, the PR might be required to close accounts to convert them to cash, sell other assets if the will so directs, or execute deeds to transfer title to real estate to the heirs. In addition, the PR must file a final accounting with the court, which shows the assets that came into the hands of the decedent, what debts and expenses were paid, and what bequests were distributed to the heirs. The PR also must file a petition with the court to close the estate and discharge the PR from further service. If the court finds everything to be in order, it will issue an order closing the estate. At that time, the process is finished.

Again, this article discusses only the major steps in the probate process in general terms. Within those major steps are many minor details which vary from case to case and which the PR must address. We therefore recommend that you seek the services of a competent estate planning attorney to minimize the probate process and a competent probate attorney to assist in the process when that time comes.